Summary: Mr X complained about the Council’s handling of his late wife’s care. He said it failed to provide suitable overnight care and it wrongly withdrew the care it had arranged. As a result, Mr X said he and his wife experienced distress and uncertainty. We found the Council was at fault for the lack of clarity about what overnight care support Mrs Y would receive. On balance, it was also at fault for withdrawing the overnight care it had arranged. The Council agreed to apologise and make payment to Mr X to acknowledge the distress and uncertainty it caused him. As Mrs Y has sadly passed away, we cannot remedy the injustice she experienced.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the Council’s handling of temporary night-time care for his wife, Mrs Y. He said it failed to provide suitable overnight care for Mrs Y when he was recovering from surgery, and it wrongly removed the care it provided after the first night.
2. As a result, Mr X said Mrs Y experienced distress as she did not get the support she needed. He also said he experienced distress due to his concerns about Mrs Y and his own health when trying to help her.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. As part of my investigation, I have:
• considered Mr X’s complaint and the Council’s responses;
• discussed the complaint with Mr X and his personal assistant;
• made enquiries with the Council and considered its response;
• considered the relevant law and guidance; and
• given Mr X and the Council the opportunity to comment on a draft version of this decision and considered the comments I received.

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What I found

Law and guidance

9. The Care and Support statutory guidance say, in circumstances where an authorised person who manages a direct payment requires a hospital stay:
• a local authority must conduct an urgent review to ensure the person cared for continues to receive the support to meet their needs.
• The support can be a direct payment, but it may be easier and less burdensome to provide the service direct to the person.
10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
11. Regulation 10 deals with dignity and respect. The intention of this regulation is to ensure people are treated with respect and their dignity is maintained at all times.
12. Regulation 13 deals with safeguarding service users from abuse and improper treatment. The intention of this regulation is to prevent people from being neglected and/or subjected to degrading treatment.

What happened

13. In 2019, Mr X lived with his wife, Mrs Y, in their home. Mrs Y’s health was poor, and she was bedridden.
14. The Council had a Care Plan for Mrs Y, which said she should receive a direct payment to meet her care needs from her personal assistants and Mr X during the day. This included a personal assistant and Mr X doubling up to support her in and out of bed. The Plan also said she used pads or sanitary towels during the night, but Mr X normally supported her with toilet needs during the night.
15. In mid-2019 Mr X told the Council about his worsening health. He said he needed more help as he could not continue to provide the double up support for Mrs Y with her personal assistant.
16. The Council reviewed Mrs X’s Care Plan. It agreed to increase Mrs Y’s direct payment for a personal assistant to provide double up support for Mrs Y during the day.
17. Shortly after, Mr X told the Council he had to have further surgery on his heart as a result of his stroke a few years earlier. He said he would therefore not be able to look after Mrs Y during the night until after he had recovered from the surgery.
18. The Council reviewed Mrs Y’s Care Plan again. It agreed to arrange overnight care for at least three nights for the period when Mr X was in hospital and recovered at home. The temporary support plan said Mrs Y should be provided with three nights of care.
19. The Council arranged for a care agency (The Care Agency) to provide night-time care for Mrs Y. This was a sitting service which could not support Mrs Y out of bed.
20. After the first night of care, the Care Agency told the Council it did not believe its support was necessary for Mrs Y. It said this was because she had slept through the night.
21. The Council’s Social Worker called Mr X and told him about the Care Agency’s view. Mr X and the Council disagrees about what happened during the call.
22. The Social Workers note of the call said:
• she told Mr X the Care Agency said Mrs Y’s overnight care was not needed as her personal assistants had prepared her for the night with pads and she slept through the night;
• she agreed to make a referral for better pads but said this could not be assessed on such short notice;
• the Care Agency could not help Mrs Y to her commode even if they did stay, as Mr X had not taken up manual handling training;
• she would request a further two nights funding for night care by the Care Agency;
• Mr X had terminated the call; and
• she called Mr X back shortly after. Mrs Y’s personal assistant told her they would manage without the Council’s help.
23. Mr X and Mrs Y’s personal assistant said the Council’s record of the calls is wrong because:
• he told the Social Worker Mrs Y needed the overnight support as she normally wakes up several times and needs support to go toilet two times at night;
• Mrs Y bed was soiled in the morning after the Care Agency had provided the sitting night service. He told the Social Worker the Care Agency said it could not help Mrs Y to the commode and questioned what the point of having the support was;
• he was not happy with the carer the Care Agency had sent. This was because she did not do anything, and he did not see her after they went to bed at night. He believed the carer did not stay as agreed as she was not present when he woke up during the night, there were no lights on, the front door had been unlocked and she provided no support to Mrs Y or Mr X;
• he agrees he told the Social Worker he did not want that carer, but he did not say they did not need or want the overnight care support;
• he did not terminate the call;
• Mrs Y’s personal assistant was present during the calls and confirmed Mr X’s recollection of the calls. She also said she did not tell the Social Worker they would manage without the Council’s support.
24. The Council said it continued to pay Mrs Y’s direct payment, but it did not provide any further care support at night as Mr X had declined its support.
25. Two months later, Mrs Y’s health worsened, and she sadly died.
26. Mr X was unhappy the Council had withdrawn the overnight care support and complained to the Council.
27. In response, the Council apologised and explained there had been a misunderstanding between its Social Worker and the Care Cgency about the number of nights the care should be for. However, it said it had not provided further overnight care as Mr X and Mrs Y’s personal assistant told the Council this was not needed.
28. There were delays in Mr X making his complaint to the Council and the Council’s response to Mr X. This was due to Mr X dealing with the loss of his wife and COVID-19.
29. Mr X remains dissatisfied with the Council’s handling of the overnight care and its response. He asked the Ombudsman to consider his complaint.
30. During my investigation Mr X and Mrs Y’s personal assistant has provided me with their signed statement of what was discussed during their call with the Council’s Social Worker. They both confirmed they did not refuse the overnight support, nor did they say they would manage without it.

Analysis

31. Mr X’s complaint is about matters which happened more than 12 months ago. The complaint is therefore late. However, I am satisfied it is appropriate to exercise my discretion to consider the complaint. This is because there were delays due to COVID-19 and Mr X dealing with the loss of his wife.

The Care Plan and overnight care arrangement

32. Mrs Y’s Care Plan set out her care needs and how her care should be arranged. She had decided this should be through a direct payment from the Council and she recruited personal assistants to provide her care. This support worked well, and she was happy with the care she received.
33. When Mr X told the Council about his upcoming heart surgery and his own worsening health, it agreed to review Mrs Y’s care. It agreed to:
• increase the direct payment to ensure two personal assistants could support Mrs Y during the day to get out of bed for her care needs; and
• provide at least three nights of care for Mrs Y while Mr X recovered from his surgery.
34. Mr X believed it was agreed for Mrs Y to receive help with her toilet needs, or at least to have her pads or sanitary towels changed during the night. Including, support with any other care needs she may have had.
35. However, based on the record of the agreed care, it was not clear what care the Council agreed to provide Mrs Y the three nights, nor what its expectations of the Care Agency were. This was fault. This is because I would expect Mrs Y’s temporary support plan and the Council’s agreement with the Care Agency to set out what support should be provided to her during the night.
36. Also, as the Council was aware Mr X normally provided support for her toilet needs during the night, it should have considered how such support could be provided. This may have been additional support to transfer her to toilet, better overnight padding or for the Care Agency to change her pads during the night. As there is no evidence this was considered, this was fault.
37. I acknowledge the Care Agency said Mrs Y slept through the night and her bed was not soiled. However, both Mr X and Mrs Y’s personal assistants confirmed this was not the case. In addition, on the following nights where Mrs Y had no overnight care, Mr X and her personal assistants said she slept in a soiled bed. On balance, I am satisfied Mrs Y’s bed was soiled on most, if not all, of the three nights.

The removal of overnight care

38. Mr X and the Council disagrees on what happened during his calls with the Council’s Social Worker. This means it is not clear whether Mr X refused overnight care support or if the Council wrongly withdrew the support.
39. I have considered the evidence available, on balance, I am satisfied Mr X, and Mrs Y’s personal assistant did not refuse the Council help with overnight care. However, they did not want the same carer from the Care Agency to provide the care. The Council was therefore at fault for withdrawing the overnight care it had agreed to provide. I acknowledge this is likely to have been due to a misunderstanding by the Social Worker and unintentional.

Injustice

40. As Mrs Y has sadly passed away, I cannot remedy any injustice the Council’s faults caused to her.
41. However, I am satisfied Mr X also experienced an injustice from the Council’s faults. This is because he experienced distress and uncertainty about Mrs Y’s care, wellbeing, and dignity. He also had concerns about his own health as he tried to provide her with support at a time when he was recovering from surgery.

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Agreed action

42. To remedy the injustice the Council caused to Mr X, the Council should, within one month of the final decision:
1. Apologise in writing and pay Mr X £150 to acknowledge the distress and uncertainty he experienced as a result of the Council’s faults.
43. Within three months of the final decision the Council should also:

b) remind its staff to ensure service users care needs are properly considered and the agreed support is recorded in temporary care plans. This includes in circumstances where informal carers are unable to provide care due to requiring hospital stay and during their recovery.

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Final decision

44. I have completed my investigation with a finding of fault leading to an injustice. The Council has accepted my recommendations. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman